U2 manager calls Safe Harbor a “Thieves’ Charter”

At the Midem music industry conference, U2 manager Paul McGuiness calls on the …

Paul McGuinness, U2 manager, took the stage at the Midem music industry conference in Cannes yesterday to back the IFPI party line: it's time to take the fight over file-swapping to the ISPs. McGuinness railed against those companies that have "built multibillion-dollar industries on the back of our content without paying for it."

McGuinness wants to stop going after individual file-swappers and go right to the industry that makes file-swapping possible: ISPs. He hopes to shift the "moral pressure" to Internet providers and "shame them into wanting to help us." He also thinks that most technology gurus are countercultural hippies, Deadheads, and Abbie Hoffman disciples (Steal This Book is mentioned as particularly pernicious influence). How else to explain the fact the tech companies don't want to help the music business more?

Safe harbors, Thieves' Charters

It turns out that there's an excellent reason: safe harbor provisions. In the US, ISPs are generally immune from prosecution so long as they act only as a "common carrier" to pass traffic across their network without interference or control. If they begin to take control of the content passing through their tubes, they open themselves up to liability for that content.

But McGuinness argues that safe harbor laws in the 1990s were passed before music was so widely available. "There was no inkling at that time of the enormous explosion of P2P piracy that was to follow," he said. "If legislators had forseen that explosion, would they have ever offered immunity for so-called 'mere conduits' and, in doing so, given ISPs a decade of excuses for refusing to protect our content?"

It's a facile analysis of safe harbor provisions, which have kept the burgeoning ISP industry from being sued every time organized crime used the Internet or someone hosted child pornography or defamatory comments were posted to an Internet message board, but McGuiness is absolutely convinced on this point. He even calls safe harbor provisions "a Thieves' Charter." If ISPs don't cooperate with filtering proposals voluntarily, he argues that their safe harbor protection should be taken away through legislation. No word on whether he would make the phone companies and parcel delivery services liable for any infringing uses of their respective networks.

The Financial Times, which had a reporter in attendance at the speech, noted that McGuinness' talk was "interrupted by bursts of spontaneous applause from his audience."

McGuinness' points are the same ones conveyed by the most recent IFPI report on digital music, which also argued that music labels need to switch attention from end users to ISPs (not surprisingly, the IFPI is hosting an online transcript of the remarks [PDF]). That report spoke approvingly about the recent French plan to disconnect file-swappers after several offenses. UK sources tell Ars that a similar policy could be coming to the UK later this year (as recommended by the 2006 Gowers report) if stakeholders don't agree on some model to limit illicit downloads.

In the US, filtering P2P traffic has been controversial. Comcast is in the middle of an FCC investigation into its traffic-shaping practices; as we noted only this morning, user comments in that case have been overwhelmingly negative, in large part because the company won't simply come out and say what it is doing.

But what happens when a firm is explicit about its caps and filters? We may find out soon, as AT&T has promised to implement a national filtering scheme of some sort on its network to filter out copyrighted movies and music. The company has been quite open about its plans, and we have no doubt that it will let the public know when it implements the feature.

Whether such a filtering scheme is the right way to combat illicit file-swapping is still an open question. It seems likely to fail on technical grounds (once P2P apps adopt robust encryption, the only real option left would seem to be protocol blocking) and raises a host of questions about privacy and due process. But shifting the focus to ISPs could also stop the RIAA's US legal campaign against suspected file-swappers, a campaign so massive that the accused can buy their way out of jeopardy with a credit card and a web site.

The way forward

What's the solution? Luckily, McGuiness isn't just out to get ISPs. He has a positive vision for collaborating with them. "There's a huge commercial partnership opportunity there as well," he said. "For me, the business model of the future is one where music is bundled into an ISP or other subscription service and the revenues are shared between the distributor and the content owners."

He also points out that he is not in favor of a "state-imposed blanket license on music," so this would be a voluntary "extra feature" that Internet users could purchase from their ISPs. It's similar to a recent Canadian proposal, though McGuiness would let individual Internet users opt-out, it appears.

McGuiness also knows that the record companies have been slow to act, and he blames them for a "lack of foresight and poor planning." As a music lover himself, he is also dismayed that in the digital revolution, "quality seems to have been forgotten," and he calls on the industry to start offering lossless legal music.

These are ideas worth exploring, though in McGuinness' view, they only have a chance of success if coupled with a crackdown on file-sharing. At least that crackdown is no longer visualized as an unending series of worldwide lawsuits.